State v. Bond

2024 Ohio 3419

• Court: Ohio Court of Appeals
• Decided: September 6, 2024
• Docket: 30035
• Status: Published

Opinion

[Cite as State v. Bond, 2024-Ohio-3419.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 30035 : v. : Trial Court Case No. 2021 CR 03825 : DOSHIE G. BOND : (Criminal Appeal from Common Pleas : Court) Appellant : :

...........

OPINION

Rendered on September 6, 2024

DOSHIE G. BOND, Pro Se Appellant

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Attorney for Appellee

.............

HUFFMAN, J.

{¶ 1} Defendant-Appellant Doshie G. Bond appeals for the third time from his

conviction for felonious assault. For the reasons outlined below, we affirm the judgment

of the trial court.

I. Background Facts and Procedural History -2-

{¶ 2} The following is a summary of the facts in this matter, as stated in State v.

Bond, 2023-Ohio-1226, ¶ 2-4 (2d Dist.) (“Bond I”). On October 26, 2021, Bond purchased

flooring at the Grandview Home Center Outlet in Trotwood. The following day, he returned

to the store seeking to return the product, which he claimed was defective. Bond spoke

with store employees Ginger Ashworth and Jennifer McCarty, both of whom informed him

that the store did not accept returns or exchanges. When Ashworth and McCarty refused

to permit a return or exchange, Bond indicated he wanted to speak to “the man.” Ashworth

informed her husband, Ronald, that Bond wanted to speak to him. Bond then left the store

and went to his truck, which was located beside a loading garage.

{¶ 3} Ronald then approached Bond, who had opened the loading garage door.

Ronald informed Bond that the store would not accept returns and then closed and locked

the garage door and reentered the store. Bond subsequently also reentered the store and

engaged with Ronald again. At the end of the interaction, Bond punched Ronald two times

and, when Ronald fell to the floor, Bond struck him again. Ronald suffered serious injuries

because of the attack, including a broken jaw requiring surgical repair, a fractured orbital

bone, a fractured rib, a lost tooth, and a closed head injury.

{¶ 4} On November 29, 2021, Bond was indicted on one count of felonious assault

(serious physical harm) in violation of R.C. 2903.11(A)(1). The matter proceeded to jury

trial in June 2022, and Bond was found guilty of the indicted charge. The trial court

sentenced him to an indefinite prison term of eight to twelve years under the Reagan

Tokes Act. At his initial sentencing hearing, Bond was represented by counsel, and the

trial court advised Bond with respect to post-release control and his appellate rights as -3-

follows:

Upon being released from prison, you will be placed on a period of

not less than eighteen months, no more than up to three years of post-

release control supervision.

If you did violate any post-release control sanction or any law while

you’re on post-release control, the parole board can put you back into prison

for up to one-half of this prison sentence added on top of the original prison

sentence.

Furthermore, if you commit any new felony while you’re on that post-

release control supervision, then what can happen is that in addition to

being convicted and sentenced on that new felony, the judge in that new

felony case can add on a new prison sentence, an additional prison term

for violation of the post-release control sanctions.

I am going to order that you pay the Court costs as determined by

the Montgomery County Clerk of Courts.

Also, Mr. Bond, you do have the right to appeal the sentence of

judgment of this Court and the finding of the jury verdict by filing a notice of

appeal within thirty days of today’s date. If you cannot afford the cost of

appeal, the cost of documents, or an attorney, they’ll provide it to you

without cost.

{¶ 5} In its judgment entry, the trial court also stated the following regarding post-

release control and appellate rights: -4-

The Court notifies the defendant that, as part of this sentence, on

FELONIOUS ASSAULT (SERIOUS PHYSICAL HARM) - 2903.11(A)(1) F2,

the defendant WILL be supervised by the Parole Board for a period of NOT

LESS THAN EIGHTEEN (18) MONTHS But no More than THREE (3) years

Post-Release Control after the defendant’s release from imprisonment.

Should the defendant violate any post-release control sanction or

any law, the adult parole board may impose more restrictive sanctions, may

increase the length of post-release control, or could impose up to an

additional nine (9) month prison term for each violation for a total of up to

fifty percent (50%) of the original sentence imposed by the court. If the

violation of the sanction is a felony, in addition to being prosecuted and

sentenced for the new felony, that sentencing court or the adult parole board

may impose a prison term for the violation of post-release control, pursuant

to R.C. 2967.28.

The Court did fully explain to defendant HIS appellate rights and the

defendant informed the Court that said rights were understood.

{¶ 6} Bond timely appealed in Bond I, 2023-Ohio-1226 (2d Dist.), asserting five

assignments of error: (1) the trial court abused its discretion when it denied Bond’s

request for an aggravated assault jury instruction; (2) the trial court erred when it admitted

video surveillance footage (State’s exhibit 21); (3) the trial court failed to provide proper

notices under the Reagan Tokes Act at Bond’s sentencing hearing; (4) the trial court erred

when it dismissed a female juror for missing part of the trial but allowed a male juror to -5-

remain; and (5) Bond was denied his right to counsel in the trial court as guaranteed under

the Fourteenth and Sixth Amendments to the United States Constitution and Article 1,

Sections 10 and 16 of the Ohio Constitution. The State conceded that the trial court had

failed to adequately advise Bond under the Reagan Tokes Act (as set forth in Bond’s third

assignment of error), and we reversed and remanded the matter for the sole purpose of

resentencing Bond to provide the proper Reagan Tokes Act notifications under R.C.

2919.19(B)(2)(c). We found all of his other arguments to be without merit. Id.

{¶ 7} The trial court resentenced Bond on May 10, 2023, in accordance with Bond

I, but Bond apparently was not represented by counsel at the resentencing hearing. The

trial court entered a final judgment the next day. On May 19, 2023, Bond filed a pro se

notice of appeal, and we appointed appellate counsel to represent him. Thus, his second

appeal was from the trial court’s judgment resentencing him pursuant to our mandate in

Bond I. See State v. Bond, 2023-Ohio-3996 (2d Dist.) (“Bond II”). He later filed a motion

to remove his appellate counsel and a waiver acknowledging that he chose to proceed

without counsel. Subsequently, we granted his motion to remove his appellate counsel.

{¶ 8} In Bond II, Bond asserted pro se four assignments of error, including that the

trial court had denied him his right to counsel when it conducted his resentencing via

video conference without the presence of any defense counsel. The State conceded

error in this respect and asked that we remand to the trial court for another sentencing

hearing at which Bond’s counsel could be present. We agreed and remanded the matter

for resentencing. Bond raised other assignments of error in which he argued that the

Reagan Tokes Act was unconstitutional and that his maximum prison sentence was -6-

contrary to law; we found these arguments to be barred by res judicata because they

were not raised in his initial appeal. Finally, Bond asserted that he had not been properly

advised of his appellate rights; with respect to this argument, we concluded that any error

in this respect had been harmless because Bond had filed a timely notice of appeal,

counsel had been appointed for him on appeal, and, in any event, we were remanding for

resentencing. Thus, we again reversed and remanded for the limited purpose of

resentencing Bond in the presence of counsel while also providing Bond with the proper

Reagan Tokes notifications consistent with our prior opinion in Bond I.

{¶ 9} On December 27, 2023, the trial court resentenced Bond for a third time with

counsel present, advising him of his rights, and explaining his sentence under the Reagan

Tokes Act; the trial court imposed the same sentence that Bond had previously received.

The amended judgment entry included the same language regarding Bond’s post-release

control obligations and appellate rights as the original judgment entry.

{¶ 10} Bond now appeals for a third time. On February 5, 2024, Bond filed a motion

to remove counsel to proceed in this appeal pro se, which we sustained.

II. Assignments of Error

{¶ 11} Bond asserts the following three assignments of error, verbatim:

Appellant’s postrelease resentencing hearing according to the

court’s lack of jurisdiction should have been vacated and set aside the

sentencing judgment due to the structural error in violation of his Sixth

Amendment, Fourteenth Amendment, and Ohio Constitution Article 1 § 10.

The trial court erred when it failed to notify Appellant of his right to -7-

appeal his post-release sentence after the postrelease resentencing

hearing violated the Fifth Amendment, Fourteenth Amendment, and the

Ohio Constitution Article 1 § 10 and 16.

Where the facial challenge between the general and special or local

statutes conflict, and the conflict are irreconcilable in that the statutes

cannot be construed ‘so that effect is given to both have the potential of

violating due process of the U.S. Constitution of the Fifth and Fourteenth

Amendment and Ohio Constitution Article 1 § 10 and 16.

{¶ 12} In his first assignment of error, Bond contends that the trial court did not

have jurisdiction over him for resentencing. He argues that the trial court was divested of

jurisdiction to resentence him because he was not represented by counsel during his May

2023 resentencing hearing and because the trial court did not properly advise him of his

post-release control obligations. We disagree.

{¶ 13} At the outset, we note that any errors from Bond’s May 2023 resentencing

hearing, including his lack of counsel, have already been adjudicated by us in Bond II,

and, thus, any argument as to the same is not properly before us. As a result, we reject

Bond’s argument that the trial court was divested of jurisdiction to resentence him

because he was not represented by counsel during resentencing in May 2023.

{¶ 14} Likewise, we reject Bond’s argument that the trial court was divested of

jurisdiction because the trial court did not properly advise him of his post-release control

obligations. “A sentence is void when a sentencing court lacks jurisdiction over the subject

matter of the case or personal jurisdiction over the accused.” State v. Harper, 2020-Ohio- -8-

2913, ¶ 42. “When the sentencing court has jurisdiction to act, sentencing errors in the

imposition of postrelease control render the sentence voidable, not void, and the sentence

may be set aside if successfully challenged on direct appeal.” Id.

{¶ 15} Here, Bond was properly indicted for a crime committed in Montgomery

County and, thus, the Montgomery County Court of Common Pleas had personal and

subject matter jurisdiction over Bond’s sentencing proceedings. Neither of Bond’s alleged

errors would “divest” the trial court of jurisdiction over Bond.

{¶ 16} Bond is correct that lack of representation or failure to advise him of his

post-release control obligations would make his sentence void or voidable, respectively,

but those alleged errors would not remove him from the jurisdiction of the trial court. The

remedy for either error would be to remand the matter to the trial court for resentencing,

which has already been done in this case.

{¶ 17} At Bond’s most recent resentencing hearing in December 2023, he was

represented by counsel and was provided with the proper Reagan Tokes notifications, as

required by our opinion and final entry in Bond II. It is undisputed that the trial court did

not specifically advise Bond again of his post-release control obligations during that

hearing. However, as set forth above, Bond had already been advised of his post-release

control obligations in his initial sentencing hearing and in the original judgment entry.

Bond was again reminded of his post-release control obligations in the amended

judgment entry following the December 2023 hearing. Under these circumstances, we

cannot say that the trial court erred by not advising him of his post-release control

obligations, as the matter was remanded for the sole purpose of advising Bond of his -9-

obligations under the Reagan Tokes Act.

{¶ 18} Bond’s first assignment of error is overruled.

{¶ 19} In his second assignment of error, Bond contends that the trial court erred

by failing to sufficiently notify him of his right to appeal. While the trial court did not

specifically advise Bond of his appellate rights during his most recent resentencing

hearing, we disagree that the trial court committed reversible error.

{¶ 20} In Bond II, Bond argued that the trial court had not informed him of his

Crim.R. 32(B) appellate rights, which violated his right to due process. Bond at ¶ 21. At

that time, the State conceded that the trial court had failed to advise Bond of his appellate

rights during his resentencing hearing, but it contended that this error was harmless

because Bond timely filed his notice of appeal and was represented by counsel. The State

further pointed out that Bond was informed of his appellate rights during his original

sentencing hearing. We agreed with the State.

{¶ 21} “Crim.R. 32(B)(1) sets forth the trial court’s duty to notify the defendant of

his right to appeal his conviction.” Bond II, 2023-Ohio-3996, at ¶ 23. “In addition, Crim.R.

32(B)(3) sets forth additional notifications the trial court must give the defendant relating

to his right to appeal.” Id. It is undisputed that the trial court did not advise Bond of his

appellate rights during the December 2023 resentencing hearing in this case. However,

the trial court’s error in this regard is subject to a harmless error analysis.

In State v. Dews, 2d Dist. Greene No. 2015-CA-2, 2016-Ohio-4975, ¶ 6, we

held that “[a] trial court’s failure to advise a defendant of his appellate rights

under Crim.R. 32 is harmless error where, as here, he files a timely notice -10-

of appeal with the assistance of appointed counsel.” We distinguished that

case from the case of State v. Hunter, 8th Dist. Cuyahoga No. 92625, 2010-

Ohio-657. In that case, the Eighth District reversed and remanded for

resentencing based on the trial court’s failure to advise the defendant of his

appellate rights under Crim.R. 32. In Hunter, the defendant filed a pro se

appeal from his resentencing, and the Eighth District’s primary concern

appeared to be the trial court's failure to inform the defendant of his right to

appointed counsel to assist him. Id. at ¶ 17-21. Without being advised of

that right, the defendant “was unable to even request counsel to assist with

his appeal.” Id. at ¶ 18. By proceeding pro se, the defendant in Hunter was

prejudiced by the trial court’s failure to comply with Crim.R. 32.

Bond II at ¶ 24.

{¶ 22} Like in Bond II, the facts in Bond’s current appeal are not squarely on point

with the facts in Dews or Hunter. However, we again believe the facts are closer to

the Dews case. Here, Bond exercised his appellate rights by filing pro se a timely notice

of appeal. While he is not represented by counsel, he filed his own motion to remove

counsel to proceed pro se after filing his notice of appeal. This is Bond’s third appeal from

sentencing. In each previous appeal, Bond had counsel and was aware that he could

request counsel to assist with his appeal. In this instance, however, he chose not to

proceed with counsel. Upon the record before us, we conclude that the trial court’s error

in failing to advise Bond again of his appellate rights at his December 2023 resentencing

hearing was harmless. See Dews at ¶ 6. -11-

{¶ 23} Bond’s second assignment of error is overruled.

{¶ 24} In his third assignment of error, Bond contends that the Reagan Tokes Law

is unconstitutional and, as applied, denied him of his due process rights. Again, we

disagree.

{¶ 25} The Reagan Tokes Law provides for indefinite sentencing for offenders

convicted of first- or second-degree felonies (eligible felonies) for which life imprisonment

is not an available sentence. State v. Hacker, 2023-Ohio-2535, ¶ 7, citing R.C.

2929.14(A)(1)(a) and (2)(a). As pointed out by the State, the Supreme Court of Ohio

upheld the constitutionality of the Reagan Tokes Law in Hacker.

{¶ 26} Moreover, we again note that, in Bond II, Bond sought to challenge the

constitutionality of the Reagan Tokes Law. There, we explained that Bond had had the

opportunity to challenge the Reagan Tokes Law on direct appeal, which he failed to do.

Bond II at ¶ 18. “Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that judgment.” Id. at ¶ 17,

quoting State v. Perry, 10 Ohio St.2d 175, (1967), paragraph nine of the syllabus.

Accordingly, in Bond II, we concluded that Bond’s challenge regarding the constitutionality

of Reagan Tokes was barred by the doctrine of res judicata and, thus, he could not raise

the issue on appeal from his resentencing hearing. Id. at ¶ 18.

{¶ 27} As previously noted, Bond had an opportunity to raise his issue regarding -12-

the Reagan Tokes Act on direct appeal, but he failed to do so. Because Bond failed to

raise this argument as part of his direct appeal, it is barred by the doctrine of res judicata,

and he cannot now raise it on appeal from his limited resentencing. Id. at ¶ 18.

{¶ 28} Bond’s third assignment of error is overruled.

III. Conclusion

{¶ 29} Having overruled Bond’s three assignments of error, the judgment of the

trial court is affirmed.

EPLEY, P.J. and WELBAUM, J., concur.